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In Busker, the Court addressed whether publicly funded work performed on rolling stock, such as a train, is a covered "public work."
On a certified question from the Ninth Circuit, the
The Court also rejected the plaintiff's reliance on section 1772, which, as the Court explained in Mendoza (the companion case), does not expand the definition of "public works."
In Mendoza, the Court addressed whether prevailing wages must be paid for mobilization (e.g, work transporting heavy machinery to and from a public works site). The plaintiff employees in Mendoza did not contend that their work was a "public work" under section 1720; they argued only that, under section 1772, their work was covered because it was performed "in the execution" of a public works contract.
The Court rejected that reading, concluding that section 1772 did not enlarge coverage beyond that delineated by section 1720 but simply confirms that the law extends to workers employed by contractors or subcontractors. In reaching that conclusion, the Court abrogated lower-court decisions that had adopted a multifactor test for determining whether work ancillary to a construction project, such as hauling or off-site fabrication, falls within the statute under section 1772. Now, prevailing wages must be paid for such work only if it falls within one of the categories of covered work specified in section 1720.
While the Mendoza Court made clear that section 1772 does not itself make mobilization a public work for which prevailing wages must be paid, it expressly did not address whether certain types of mobilization efforts might fall within the scope of the categories of "public works" as defined in section 1720 (e.g., "preconstruction," "[s]treet improvement work," etc.). This issue will undoubtedly be addressed legislatively or in subsequent court decisions.
Earlier this year, the Court held in Kaanaana v.
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